11.  The applicant was born in October 1971 and lives in Wiltshire.
12.  The facts, as found by Mr Justice Wall (“Wall J”), who heard the parties’ oral evidence (see paragraph 20 below), are as follows.
13.  On 12 July 2000 the applicant and her partner, J. (born in November 1976), commenced treatment at the Bath Assisted Conception Clinic (“the clinic”). The applicant had been referred for treatment at the clinic five years earlier, when she was married, but had not pursued it because of the breakdown of her marriage.
14.  On 10 October 2001 the applicant and J. were informed, during an appointment at the clinic, that preliminary tests had revealed that the applicant had serious pre-cancerous tumours in both ovaries, and that her ovaries would have to be removed. They were told that because the tumours were growing slowly it would be possible first to extract some eggs for in vitro fertilisation (“IVF”), but that this would have to be done quickly.
15.  The consultation of 10 October 2001 lasted approximately an hour in total. A nurse explained that the applicant and J. would each have to sign a form consenting to the IVF treatment and that, in accordance with the provisions of the Human Fertilisation and Embryology Act 1990 (“the 1990 Act”), it would be possible for either to withdraw his or her consent at any time before the embryos were implanted in the applicant’s uterus (see paragraph 37 below). The applicant asked the nurse whether it would be possible to freeze her unfertilised eggs, but was informed that this procedure, which had a much lower chance of success, was not performed at the clinic. At that point J. reassured the applicant that they were not going to split up, that she did not need to consider the freezing of her eggs, that she should not be negative and that he wanted to be the father of her child.
16.  Thereafter, the couple entered into the necessary consents, by signing the forms required by the 1990 Act (see paragraph 37 below).
Immediately beneath the title to the form appeared the following words:
“NB – do not sign this form unless you have received information about these matters and have been offered counselling. You may vary the terms of this consent at any time except in relation to sperm or embryos which have already been used. Please insert numbers or tick boxes as appropriate.”
17.  On 12 November 2001 the couple attended the clinic and eleven eggs were harvested and fertilised. Six embryos were created and consigned to storage. On 26 November the applicant underwent an operation to remove her ovaries. She was told that she should wait two years before attempting to implant any of the embryos in her uterus.
18.  In May 2002 the relationship broke down. The future of the embryos was discussed between the parties. On 4 July 2002 J. wrote to the clinic to notify it of the separation and to state that the embryos should be destroyed.
19.  The clinic notified the applicant of J.’s withdrawal of consent to further use of the embryos and informed her that it was now under a legal obligation to destroy them, pursuant to paragraph 8(2) of Schedule 3 to the 1990 Act (see paragraph 37 below). The applicant commenced proceedings in the High Court, seeking an injunction requiring J. to restore his consent to the use and storage of the embryos and a declaration, inter alia, that he had not varied and could not vary his consent of 10 October 2001. Additionally she sought a declaration of incompatibility under the Human Rights Act 1998 to the effect that section 12 of, and Schedule 3 to, the 1990 Act breached her rights under Articles 8, 12 and 14 of the Convention. She also pleaded that the embryos were entitled to protection under Articles 2 and 8. Interim orders were made requiring the clinic to preserve the embryos until the end of the proceedings.
20.  The trial judge, Wall J, heard the case over five days and took evidence from, among others, the applicant and J. On 1 October 2003, in a 65-page judgment (Evans v. Amicus Healthcare Ltd and Others [2003] EWHC 2161 (Fam)), he dismissed the applicant’s claims.
21.  He concluded that under the terms of the 1990 Act, and as a matter of public policy, it had not been open to J. to give an unequivocal consent to the use of the embryos irrespective of any change of circumstance, and that, as a matter of fact, J. had only ever consented to his treatment “together” with the applicant, and not to her continuing treatment on her own in the event that their relationship ended. Wall J thus rejected the applicant’s submission that J. was estopped from withdrawing his consent, finding that both the applicant and J. had embarked on the treatment on the basis that their relationship would continue. On 10 October 2001 J. had been doing his best to reassure the applicant that he loved her and wanted to be the father of her children; giving a truthful expression of his feelings at that moment, but not committing himself for all time. Wall J observed that in the field of personal relationships, endearments and reassurances of this kind were commonplace, but they did not – and could not – have any permanent, legal effect. In undergoing IVF with J., the applicant had taken the only realistic course of action open to her. Wall J continued:
“However, even if I am wrong about that, and even if an estoppel is capable of existing in the face of the Act, I do not, for the reasons I have given, think it would be unconscionable to allow [J.] to withdraw his consent. It is a right which the Statute gives him within the clear scheme operated by Parliament. It was the basis upon which he gave his consent on 10 October 2001. It is perfectly reasonable for him, in the changed circumstances which appertain, not to want to father a child by Ms Evans.”
22.  As to the applicant’s Convention claims, Wall J held in summary that an embryo was not a person with rights protected under the Convention, and that the applicant’s right to respect for family life was not engaged. He accepted that the relevant provisions of the 1990 Act interfered with the private life of both parties, but held that it was proportionate in its effect, the foundation for the legislation being a treatment regime based on the twin pillars of consent and the interests of the unborn child. He considered it entirely appropriate that the Act required couples embarking on IVF treatment to be in agreement about the treatment, and permitted either party to withdraw from it at any time before the embryo was transferred into the woman.
23.  Wall J emphasised that the provisions of Schedule 3 to the Act (see paragraph 37 below) applied equally to all patients undergoing IVF treatment, irrespective of their sex, and concluded with an illustration of how the requirement for joint consent could similarly affect an infertile man.
“If a man has testicular cancer and his sperm, preserved prior to radical surgery which renders him permanently infertile, is used to create embryos with his partner; and if the couple have separated before the embryos are transferred into the woman, nobody would suggest that she could not withdraw her consent to treatment and refuse to have the embryos transferred into her. The statutory provisions, like Convention rights, apply to men and women equally.”
24.  The applicant’s appeal to the Court of Appeal was dismissed in a judgment delivered on 25 June 2004 (Evans v. Amicus Healthcare Ltd [2004] EWCA Civ 727).
The court held that the clear policy of the 1990 Act was to ensure the continuing consent of both parties from the commencement of treatment to the point of implantation of the embryo, and that “the court should be extremely slow to recognise or to create a principle of waiver that would conflict with the parliamentary scheme”. Like Wall J, the Court of Appeal found that J. had only ever consented to undergoing “treatment together” with the applicant, and had never consented to the applicant using the jointly created embryos alone. Once the relationship had broken down, and J. had indicated that he did not wish the embryos to be preserved or used by the applicant, they were no longer being treated “together”. The court rejected the applicant’s argument that J. had concealed his ambivalence, thereby inducing her to go forward with him into couple treatment, holding this to be an unjustified challenge to the finding of the trial judge who had had the obvious advantage of appraising the oral evidence of the applicant, J., and the other witnesses (see paragraph 20 above). The Court of Appeal was also informed by J.’s counsel that J.’s clear position in withdrawing his consent was one of fundamental rather than purely financial objection.
25.  While there was an interference with the private lives of the parties, Lords Justices Thorpe and Sedley found it to be justified and proportionate, for the following reasons.
“The less drastic means contended for here is a rule of law making the withdrawal of [J.’s] consent non-conclusive. This would enable [the applicant] to seek a continuance of treatment because of her inability to conceive by any other means. But unless it also gave weight to [J.’s] firm wish not to be father of a child borne by [the applicant], such a rule would diminish the respect owed to his private life in proportion as it enhanced the respect accorded to hers. Further, in order to give it weight the legislation would have to require the [Human Fertilisation and Embryology Authority] or the clinic or both to make a judgment based on a mixture of ethics, social policy and human sympathy. It would also require a balance to be struck between two entirely incommensurable things. ...
... The need, as perceived by Parliament, is for bilateral consent to implantation, not simply to the taking and storage of genetic material, and that need cannot be met if one half of the consent is no longer effective. To dilute this requirement in the interests of proportionality, in order to meet [the applicant’s] otherwise intractable biological handicap, by making the withdrawal of the man’s consent relevant but inconclusive, would create new and even more intractable difficulties of arbitrariness and inconsistency. The sympathy and concern which anyone must feel for [the applicant] is not enough to render the legislative scheme ... disproportionate.”
26.  Lady Justice Arden stated, by way of introduction:
“The 1990 Act inevitably uses clinical language, such as gametes and embryos. But it is clear that the 1990 Act is concerned with the very emotional issue of infertility and the genetic material of two individuals which, if implanted, can lead to the birth of a child. ... Infertility can cause the woman or man affected great personal distress. In the case of a woman, the ability to give birth to a child gives many women a supreme sense of fulfilment and purpose in life. It goes to their sense of identity and to their dignity.”
She continued:
“Like Thorpe and Sedley LJJ, I consider that the imposition of an invariable and ongoing requirement for consent in the 1990 Act in the present type of situation satisfies Article 8 § 2 of the Convention. ... As this is a sensitive area of ethical judgment, the balance to be struck between the parties must primarily be a matter for Parliament ... Parliament has taken the view that no one should have the power to override the need for a genetic parent’s consent. The wisdom of not having such a power is, in my judgment, illustrated by the facts of this case. The personal circumstances of the parties are different from what they were at the outset of treatment, and it would be difficult for a court to judge whether the effect of [J.’s] withdrawal of his consent on [the applicant] is greater than the effect that the invalidation of that withdrawal of consent would have on [J.]. The court has no point of reference by which to make that sort of evaluation. The fact is that each person has a right to be protected against interference with their private life. That is an aspect of the principle of self-determination or personal autonomy. It cannot be said that the interference with [J.’s] right is justified on the ground that interference is necessary to protect [the applicant’s] right, because her right is likewise qualified in the same way by his right. They must have equivalent rights, even though the exact extent of their rights under Article 8 has not been identified.
... The interference with [the applicant’s] private life is also justified under Article 8 § 2 because, if [the applicant’s] argument succeeded, it would amount to interference with the genetic father’s right to decide not to become a parent. Motherhood could surely not be forced on [the applicant] and likewise fatherhood cannot be forced on [J.], especially as in the present case it will probably involve financial responsibility in law for the child as well.”
27.  On the issue of discrimination, Lords Justices Thorpe and Sedley considered that the true comparison was between women seeking IVF treatment whose partners had withdrawn consent and those whose partners had not done so; Lady Justice Arden considered that the real comparators were fertile and infertile women, since the genetic father had the possibility of withdrawing consent to IVF at a later stage than in ordinary sexual intercourse. The three judges were nevertheless in agreement that, whatever comparators were chosen, the difference in treatment was justified and proportionate under Article 14 of the Convention for the same reasons which underlay the finding of no violation of Article 8. The Court of Appeal further refused leave to appeal against Wall J’s finding that the embryos were not entitled to protection under Article 2, since under domestic law a foetus prior to the moment of birth, much less so an embryo, had no independent rights or interests.
28.  On 29 November 2004 the House of Lords refused the applicant leave to appeal against the Court of Appeal’s judgment.